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NY's top court: NYC gang member not a terrorist

Tuesday - 12/11/2012, 12:16pm EST

By MICHAEL VIRTANEN
Associated Press

ALBANY, N.Y. (AP) - Street gangsters who commit assaults and killings are not terrorists under the statute enacted after hijackers crashed jets into the World Trade Center on Sept. 11, New York's highest court ruled unanimously Tuesday.

There's no indication New York lawmakers passed the law to elevate gang-on-gang street violence to the status of terrorism, which carries tougher penalties, the Court of Appeals said. The court ordered a new trial for Edgar Morales, a member of the St. James Boys gang who was convicted of fatally shooting a 10-year-old bystander and paralyzing a rival gang member at a christening party.

Bronx prosecutors argued the gang sought to intimidate the entire Mexican-American community in the neighborhood. The anti-terrorism law applies to crimes committed with "intent to intimidate or coerce a civilian population."

The six judges, agreeing with a midlevel court, concluded there was insufficient proof of that. They also said that prosecutors' terrorism theory, which allowed evidence of the gangs' alleged criminal acts over three years, probably prejudiced the jury.

"If we were to apply a broad definition to `intent to intimidate or coerce a civilian population,' the people could invoke the specter of `terrorism' every time a Blood assaults a Crip or an organized crime family orchestrates the murder of a rival syndicate's soldier," Judge Victoria Graffeo wrote.

"But the concept of terrorism has a unique meaning and its implications risk being trivialized if the terminology is applied loosely in situations that do not match our collective understanding of what constitutes a terrorist act," she wrote.

Graffeo noted that the legislative findings in support of the statute cited seven terrorist acts, including the Sept. 11, 2001, attacks that killed nearly 3,000 people in Manhattan and the bombing of the Oklahoma City federal office building in 1995.

The court does not believe that the "discrete criminal transaction against identified gang enemies" allegedly committed by Morales, now 30, in the August 2002 fracas outside a church was designed to intimidate or coerce the neighborhood's entire Mexican-American community, she wrote.

Morales was convicted of manslaughter, attempted murder, weapon possession and conspiracy _ each count enhanced in seriousness by the anti-terrorism law. He was sentenced to 40 years to life in prison. He said he handled the gun but denied firing the five shots.

Bronx prosecutors said the case needs to be retried and they will begin to reassemble witnesses.

"We knew that the applicability of the terrorism statute was a novel legal issue, and that the statute would not apply to most street crimes," said Steven Reed, spokesman for District Attorney Robert Johnson. "However, we presented specific evidence concerning the reasons and intentions of the gang, including evidence that their purpose went beyond intimidating another gang. We believed that this fit squarely within the language of the statue."

Defense attorney Catherine Amirfar said their research showed a handful of states with versions of anti-terrorism statutes.

"Their decision will impact not only how New York law enforcement can pursue terrorism, but the rest of the nation, as well," she said.

Bringing the terrorism prosecution did more than taint the courtroom atmosphere against Morales, Amirfar said.

"By charging this as a charge of terrorism, that allowed the DA to bring in all types of evidence that otherwise would have been inadmissible, including acts by other people unrelated to Mr. Morales' alleged conduct."

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